Gary Wisenbaker Blog
Gary Wisenbaker
The Supreme Court, the Phoenix and Federalism

SCOTUS and Federalism; Lastest Term Sides Against Big Government

Now that most of the handwringing and hyperventilating over the Supreme Court’s (SCOTUS) recent major decisions has settled down, we can see that the dust settled on the side of federalism.

The presence of disappointment on both sides of the marriage issue aisle, if you will, demonstrates the pragmatism of the court’s decisions regarding gay marriage.  It made no decision.  It avoided the issue by ruling that the definition of marriage is best left to the states.

The California Proposition 8 case, Hollingsworth v. Perry, involved an attempt by private individuals to enforce a state law when the state’s government decided not to do so.  After the California Supreme Court ruled that the amendment to the state constitution was unconstitutional (how’s that?) without objection by the Brown administration, the plaintiffs went to federal court to overturn that decision.  The lower federal court took the case and decided against the plaintiffs, and the case wound its way to SCOTUS.

The Defense of Marriage Act (DOMA) case, United States v. Windsor, involved a lesbian couple who married in Canada then domiciled in New York.  The state subsequently recognized same sex marriages.  When Windsor’s spouse (?) died, she was required to pay significant federal taxes on her inheritance from her spouse because of DOMA’s definition of marriage:  it’s only between a man and woman.  New York law, however, was “consent based” i.e., since marriage is merely the solemnization of a mutual commitment between two persons without regard to sex, then lesbian and gay sex is permissible.  Windsor filed suit and won, the government agreed since the Obama administration’s policy was not to defend DOMA’s constitutionality.

Remember that SCOTUS can’t just decide to rule on a law nor does it have to rule on every case that comes before it.  It has to have jurisdiction.  For example, a case has to be of such a nature that jurisdiction is reserved or allowed to the federal courts, the parties must have standing, i.e., a right to bring or defend the lawsuit, and there has to be a controversy, i.e., SCOTUS can’t just pick out a law or a lower court ruling and issue a ruling on its own initiation, there has to be parties and a grievance. 

Another criteria used by SCOTUS in deciding to take a case is the political angle.  If the matter is such as has a political remedy or something best left to the political arena, the Court (or lower courts for that matter) may decide not to take the case.  Understand that these are not the only guidelines the Court may look at but just some of them and volumes have been written on each as well as others.

The California decision was pretty straight up (no pun intended).  SCOTUS ruled that only the states can defend or not defend their laws.  If they choose not to, well, then, there we are.  And since the plaintiffs never had standing to bring the suit, it never should have been taken by the lower court.  That is, the California Supreme Court issued its ruling and that was the end of the matter. 

While they may be out of court, the plaintiffs still have a political remedy:  elect and change the composition of their supreme court and/or elect a new governor, one who will uphold the laws passed by the people and pass another Proposition 8.  While the particular state in question was wrong (California of late often  has been) to refuse an initiative passed by a majority of its citizens, the decision was a decision for states’ rights.

The DOMA case is not so transparent.  Here the plaintiff filed a law suit and eventually won.  The defendant, the United States, agreed with the lower court’s ruling.  At that point, then, there is no controversy.  The Obama administration was determined to have DOMA ruled an unconstitutional law and appealed the case even though they agreed with the outcome in the court below.  SCOTUS had to appoint someone to write a “friend of the court” (amicus curiae) brief to support DOMA and, in doing so, create a controversy in order to justify hearing the case.  Justice Scalia was “astounded” at this tactic. 

The amicus brief argued, in part, that since the United States agreed with the plaintiff getting the relief that she sought in the lower court, that SCOTUS didn’t have jurisdiction.  And this is correct.  Justice Scalia got it right when he posited the rhetorical question in his dissent:  “…then what are we doing here?”  Nonetheless, the Court took the case and issued its ruling that DOMA was unconstitutional.  Dubious jurisdictional questions aside, the Court issued a decision falling on the side of recognizing, again, states’ rights and primacy in the area of defining marriage.

We finally have a SCOTUS that is willing to give back what the federal government has both grabbed and slowly taken away from the states and the citizens. 

They ruled against excessive environmental restoration demands made on a property owner before he could develop his land. 

They ruled against enforcing a 50 years old law forbidding certain states from running their own electoral process without federal oversight. 

They ruled that if there’s to be reverse discrimination in a college or university’s admissions decisions, then those policies will be strictly construed and must be narrowly tailored.  (At some point admissions policies based on the race of the applicant will be defined for what it is, racial discrimination, and will be properly relegated to the trash heap of history).

All in all, the states were left to do what they ought to do without the interference of the federal government.  That is part of what federalism is all about.  And we saw it work.

Maybe, just maybe, the Founders' view of federalism which has been so savaged by the fiery assault of liberal progressivism over the past 100  years will, like the mythological Phoenix, rise from those ashes _____________________

©2013 Gary M. Wisenbaker
Gary M. Wisenbaker is the sole copyright holder of this blog site.  By posting content to this blog, you agree to transfer copyright to the blog owner




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